184

RESERVATIONS FOR PARKS AND COMMUNITY CENTERS

NOTES

Regulations. For instructions and form of community center water-service contract see C. L. 515, August 19, 1915.

Sec. 4. [Disposal of lands not taken within 10 years-Proceeds covered into reclamation fund.]-That any of such lands not contracted for in accordance with the provisions of section three of this act within ten years from the time water is available for the same, or sooner, if the Secretary of the Interior may deem it desirable, shall be disposed of in accordance with the public-land laws applicable thereto, and the proceeds from the disposition of lands reverting to the United States under the provisions of this act, and from sales of water rights, shall be covered into the reclamation fund and placed to the credit of the project wherein the lands are situate. (38 Stat. 728.)

Textual note.-See textual note under section 1 of this act.

SPECIAL PROVISIONS OF ACT ESTABLISHING THE ROCKY MOUNTAIN NATIONAL PARK

[Extract from] An act to establish the Rocky Mountain National Park in the State of Colorado, and for other purposes. (Act of Jan. 26, 1915, 38 Stat. 798)

* Provided, That the United States Reclamation Service may enter upon and utilize for flowage or other purposes any area within said park which may be necessary for the development and maintenance of a Government reclamation project.

NOTES

See Solicitor's opinion, July 19, 1935, in notes following act of March 3, 1921, holding this act was not repealed or rescinded by act of March 3, 1921, requiring consent of Congress for construction in national parks or national monuments. Congress has recognized the distinction between a reclamation project and a power project, and there is no indication that it intended by the Federal Water Power Act (June 10, 1920, amended Mar. 3, 1921) to transfer to the Federal Power Commission the administration of the development and maintenance of a Government reclamation project in the Rocky Mountain National Park. If the proposed Grand Lake-Big Thompson transmountain diversion project is in fact a "Federal irrigation project authorized by the reclamation law", the Bureau of Reclamation is authorized by the act of January 26, 1915, to enter upon and utilize any area within the Rocky Mountain National Park which may be necessary for the development and maintenance of this project. (Opinion of Acting Attorney General, Oct. 7, 1935.)

88508-37-13

185

SPECIAL PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT

FOR 1916

[Extract from] An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1916, and for other purposes. (Act March 8, 1915, ch. 75, 38 Stat. 822)

for)

[Purchase of passenger-carrying vehicles-Compromise of damages by Secretary.]—(Appropriations are made from the reclamation fund purchase, maintenance, and operation of horsedrawn or motor-propelled passenger-carrying vehicles; payment of damages caused to the owners of lands or private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of irrigation works, and which may be compromised by agreement between the claimant and the Secretary of the Interior. (38 Stat. 859.)

NOTES

Provisions similar to the above are now carried regularly in the annual appropriation acts.

The above language, in reference to damages, viz, "payment of damages caused to the owners of lands or private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of irrigation works, and which may be compromised by agreement between the claimant and the Secretary of the Interior," occurs in various appropriation acts subsequent to March 3, 1915, as follows: Act July 1, 1916 (39 Stat. 304); act June 12, 1917 (40 Stat. 147); act of July 1, 1918 (40 Stat. 673); act of July 19, 1919 (41 Stat. 200); act June 5, 1920 (41 Stat. 913); act March 4, 1921 (41 Stat. 1402); act May 24, 1922 (42 Stat. 584); act January 24, 1923 (42 Stat. 1206); act June 5, 1924 (43 Stat. 416); act March 3, 1925 (43 Stat. 1166); act May 10, 1926 (44 Stat. 453); act January 12, 1927 (44 Stat. 934); act March 7, 1928 (45 Stat. 200); act March 4, 1929 (45 Stat. 1562); act May 14, 1930 (46 Stat. 306); act February 14, 1931 (46 Stat. 1142); except that in the six last-named acts the word "other" is inserted between the words "or" and "private," making the first part of the clause read: "Payment of damages caused to the owners of lands or other private property of any kind," etc. The six last-named acts also amend previous legislation by providing that such claims may be compromised "by agreement between the claimant and the Secretary of the Interior, or such officers as he may designate."

Liquidation of damages by executive officer.-Where damage to lands arises in connection with construction, operation, or maintenance of a reclamation project and is caused neither by negligence nor by accident, the Secretary of the Interior now and always has had under section 10 of the reclamation act the power to liquidate the damages, as declared by Congress in this appropriation act. The latter act is a legislative construction of the reclamation act. The damages in question must be due to acts by direction of competent authority. (In re Scott, Shoshone project, Comp. Dec., June 15, 1915.) Reclamation Service (Bureau of Reclamation) was given authority to approve compromise agreements for damages by departmental decision July 29, 1915.

The fact that the negligence of an officer, agent, or employee of the Government contributed to the injury of the property does not invalidate a claim for damages provided such negligence relates to the performance of the duty of the officer, agent, or employee, as distinguished from an act of wantonness or carelessness committed in a purely personal capacity. (21 Comp. Dec. 255.) The Government is not liable for damages to private property caused by the prosecution of public work, as, for example, blasting for excavation purposes

PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT FOR 1916 187

conducted in a lawful and proper manner, and a Government officer can not create a legal liability on the part of the Government by promising that the Government will pay for such damages so incurred. (23 Comp. Dec. 615.)

The United States is not authorized to pay one-half the cost of a detour power line built to avoid damaging a transmission line in connection with the construction of a canal under contract. (7 Comp. Gen. 217.)

Diversion by the United States Reclamation Service (Bureau of Reclamation) of the waters of a lake, thereby depriving meadowland of its moisture derived from subirrigation, even though the land was not contiguous to the meander line of the lake, constitutes a valid claim for damages within the contemplation of the above act, which authorizes payment of damages caused by reason of the operations of the United States in the survey, construction, operation, or maintenance of irrigation works. (George W. Myers and Lillie A. Myers, 49 L. D. 106.)

Where meadowland is damaged by the diversion of the waters of a lake, the landowner is not entitled to general damages to his remaining lands as incidental to the damage to the former, if the latter were not directly benefited by those waters prior to their diversion. (Idem.)

A State statute prescribing the period of time within which action may be initiated in its courts, has no application with reference to a claim asserted against the United States pursuant to a Federal statute, where the remedy is not sought in a tribunal of that State. (Idem.)

First Assistant Secretary's decision of February 21, 1930, reverses this ruling, holding that under articles 5526 and 5529, Revised Civil Statutes of Texas, 1925, an administrative officer of the Government is not vested with authority to allow a claim against it which is barred by the lapse of time. (Palmyra Longuemare et al., Rio Grande project.)

A horse leased by the Reclamation Service (Bureau of Reclamation) from R. R. Vannoy on the Yuma project, while being used with ordinary care, became frightened at the odor, noise, and paraphernalia of a trapper who was passing by, and as a result ran away and was injured in a barbed-wire fence. The comptroller held in this case (Comp. Gen. Dec. Mar. 15, 1922) that the proximate cause of this damage was not the "operations of the United States," but circumstances entirely foreign to and in no way connected with such operations, and that therefore there was no liability on the part of the Government under the appropriation act of June 5, 1920 (41 Stat. 913), or independently thereof. (Reclamation Record for April, 1922, p. 78.)

A contract of employment was entered into by the Bureau of Reclamation and C. E. Stone for the hire of a teamster and two horses for use in cutting hay on the Grand Valley project. The team belonged to Miss Anna Ott, who also owned a mower loaned to and used by Stone. The mower driven by Stone clogged and when the team was set to back the mower a clip came off the neck yoke. One of the horses was injured so badly that it died. The Comptroller General found that the injury to the horse was caused by the use of the mower by the United States with knowledge of its defects in connection with the survey, construction, operation, and maintenance of the irrigation project. Claim was accordingly allowed. (Comp. Gen. Dec. (A-14693),

July 29, 1926, citing 4 Comp. Gen. 713 post.)

Damages caused to the owners of lands or private property of any kind by reason of irrigation operations, etc., are authorized to be compromised by agreement between the claimant and the Secretary of the Interior and paid from the reclamation fund, and no payments of damages as a result of compromise agreements may be made prior to approval of the Secretary of the Interior. (4 Comp. Gen. 713.)

Comptroller General's decision of June 15, 1926 (A-6633) authorizes the designation of the Commissioner or the Acting Commissioner of Reclamation to compromise damage claims involving $1,000 or less.

The act of June 5, 1924 (43 Stat. 416), in no way suspends or supersedes the jurisdiction of the General Accounting Office to settle and adjust claims for damages as provided by section 236, Revised Statutes, as amended by section 305 of act of June 10, 1921 (42 Stat. 24). (4 Comp. Gen. 713.)

Claims for payment of damages under act of June 5, 1924 (43 Stat. 416), involving doubtful questions of law and fact should not be paid by disbursing officers but forwarded to the General Accounting Office for direct settlement. (Idem.)

188 PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT FOR 1916

The question was submitted to the Comptroller General whether one who has filed a claim for damages to private property by the operations of the Bureau of Reclamation may, after said claim has been administratively rejected, apply to the Comptroller General for review of the administrative action. The Comptroller General ruled that as the only authority of law for the payment of such claims is specifically limited to claims that "may be compromised by agreement between the claimant and the Secretary of the Interior or such officers as he may designate," unless and until there be such a compromise agreement, there can be no basis for an allowance on such a claim. Hence, if a rejected claim for such damages be referred to the Comptroller General for settlement, the decision would necessarily be adverse to the claimant. (Comp. Gen. Dec. A-17378, March 5, 1927, re claim of Mrs. John L Dyer, Rio Grande project.)

A claim for damages in the nature of reimbursement of the cost of necessary repairs to a tugboat leased to the United States under a contract providing for return to the owner in good condition, "with allowance for usual wear and depreciation," must be determined under the specific provisions of the contract. Such a provision in the contract does not of itself render the United States an insurer of the property or in any way enlarge its common-law liability as a bailee to exercise ordinary diligence in the care of the property, and where it appears from the evidence submitted that the injury did not result from the failure of the United States or its employees to exercise that degree of care required of a bailee, there is no authority for payment of a claim for damages. (5 Comp. Gen. 557.)

Damages. The First Assistant Secretary, in an opinion dated July 10, 1931, held regarding ten damage claims due to operation and maintenance of the Wapato project, Washington, in 1929, that authority granted the Secretary by the act of February 20, 1929, 45 Stat. 1252 (which is similar to the act of Mar. 3, 1915, supra, governing the operations of the Bureau of Reclamation), is sufficient to permit the payment of the ten claims submitted-that a landowner may be compensated for the value of his crops and improvements, including a tree, on the right-of-way taken under the act of August 30, 1890, 26 Stat. 391, but no allowance can be made for the resulting damages to the land.

The Indian Bureau proposed to pay C. J. Mast damages under the act of Congress of February 20, 1929, 45 Stat. 1252 (very similar in its language to the provision of the act of Mar. 3, 1915, 38 Stat. 859), for damages during 1924-28 to crops, hay, etc., from water breaking through an irrigation lateral, Flathead Indian Irrigation project. The lateral was in a fill for about one mile, and this. together with borrow pits and poorly drained land on each side of the lateral, provided a location favorable for muskrats. The Comptroller General in decision of October 22, 1932, quoted in full in C. L. 2033, and decision of June 30, 1933, A-45268, held that damages could not be paid, there being no showing of absence of due care on the part of the employees of the Indian Bureau to guard against damages from muskrat activities. Also it was held that Mr. Mast, being a water user under the Flathead project, was presumed to have assumed his share of the risk, not resulting directly from the acts of the United States, its officers, or employees.

Seepage damages. In opinion M. 26357 dated February 13, 1931, of the Solicitor for the Interior Department, approved by the First Assistant Secretary, it was held that the United States is liable for seepage damages from the St. Mary Canal to the lands embraced in Indian allotments; and that the Bureau has authority under the damage clause in the appropriation act to adopt methods for settling seepage damage claims, the cost to be collected from the landowners on the project. (Case of Caroline and William Henkel, Milk River project, Montana.) Upon reconsideration the decision of February 13, 1931, was adhered to. (Decision of Solicitor for the Interior Department approved by the First Assistant Secretary, Dec. 16, 1931.)

An injury caused by the construction and operation of a Government irrigation project, which by seepage and percolation necessarily influences and disturbs the ground water table of the entire valley where plaintiff's lands are situated, is damnum absque injuria. (Natron Soda Co. v. U. S. (1919), 54 Ct. Cl. 169; affirmed (1921), 257 U. S. 138, 66 L. Ed. 171, 42 Sup. Ct. 58.)